Oluwaseun O. Oluwole V. Olayiwola Abubakare (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice, Ota Judicial Division, Ogun State delivered on the 15th of December 1994.

Appellant was the Plaintiff at the lower Court. He claimed in his further amended Statement of Claim and plan dated 17th May 1993 the following reliefs:

(a) The sum of N322,000:00k being special and general damages for the Defendant’s trespass and destruction of the plaintiff’s bread baking building and numerous baking and electrical equipments such as oven and burner, cassava machine, baking pans, cutting machine, mixing machine, electrical equipments etc fixed unto the baking building situate lying and being at Oke-Giwa, Agbado Railway Station, Ifo, Ogun State.

(b) Injunction restraining the Defendant, his servants, agents and privies from continuing and committing further acts of trespass on the said plaintiff’s baking building.

Appellant based his claim on the ownership of the land in dispute having lease the land from the Nigerian Railway Corporation in 1989. Appellant Stated that there is a building on the land in which he carried out bread baking. He was from 1983-1989 a sub tenant of one Mrs Babayomi who was baking bread in the building before granting the tenancy to the plaintiff. The Respondent came one day and destroyed the building and fixtures.

The Respondent also depended on the same source by stating that he purchased the land and the mud house in dispute from Ramoni Buraimoh D.W.3 and that he further took leasehold of the land from the Nigerian Railway Corporation.

Appellant called six witnesses while the Respondent called five witnesses. The learned trial Judge in a reserved judgment struck out the Appellant’s claim at the lower court. Dissatisfied with the judgment, Appellant appealed to this court. Appellant filed four grounds of appeal. Pursuant to the rules of this court, Appellant’s brief of argument is dated and filed on 8th of December 1999 while the Respondent’s brief of argument is dated 17th July 2008 but filed 18th July 2008. It was however deemed properly filed and served pursuant to the Order of this court granted on the 30th of June 2008 whereby Respondent was granted leave to file his brief within 21 days. At the hearing of the appeal, the Respondent and his Counsel were absent. However there is proof of service of the hearing notice of the appeal on the Respondent through his Counsel Bisi Opeyemi Esan on the 13th of September 2011. Respondent’s brief is therefore deemed argued pursuant to Order 18 Rule g (4) of the Court of Appellant’s Counsel adopted and relied on the arguments in the Appellant’s brief of argument.

Appellant’s distilled three issues for determination from the four grounds of appeal thus:

(a) Whether it is proper for the lower court to hold that there was no trespass and whether the law on trespass was followed.

(b) Whether the lower court properly evaluated the evidence on special and general damages and whether the law on same was followed.

(c) Whether the lower court properly applied the law on injunction

The Respondent distilled a sole issue for determination thus:

Whether having failed to prove and/or adduce any evidence of trespass on the Respondent’s part, the Appellant is entitled to damages and declaration of injunction sought.